Chapter 13.36 CATV SYSTEMS

The purpose of this chapter is to set forth an integrated statement of conditions, requirements, obligations, duties and procedures for granting by the city of a nonexclusive franchise for the construction, maintenance and operation of a system of cable television signal distribution within the territorial limits of the city of Auburn. (Ord. 4625 § 2, 1993.)

13.36.020 Definitions.

For the purposes of this chapter, the following definitions will apply:

A. “Access channels” (commonly referred to as “PEG” channels”) means free composite channels to be used for educational purposes and by government and public agencies and/or their representatives.

B. “The Act” means the Cable Television Consumer Protection and Competition Act of 1992, and any subsequent amendments thereto.

C. “Addressability” means the ability of a system allowing a franchisee to authorize by remote control customer terminals to receive, change or to cancel any or all specified programming.

D. “Affiliate” means a condition of being united, being in close connection, allied, or attached as a member or branch.

E. “Applicant” means any person or entity that applies for a franchise.

F. “Basic cable” is the tier of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals.

G. “Cable services” means (1) the one-way transmission to subscriber of video programming or other programming service, and (2) subscriber interaction, if any, which is required for the selection by the subscriber of such video programming or other programming service.

H. “Channel” means a single path or section of the spectrum which carries a television signal.

I. “Character generator” means a device used to generate alphanumerical programming to be cablecast on a cable channel.

J. “City” means the city of Auburn, a municipal corporation of the state of Washington.

K. “Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service and other service to subscribers.

L. “Council” means the city council of the city of Auburn.

M. “Data communication” means (1) the movement of encoded information by means of electrical or electronic transmission systems; and (2) the transmission of data from one point to another over communications channels.

N. “Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes within mobile home parks, and other multiple-family residential units.

O. “FCC” means the Federal Communications Commission, a regulatory agency of the United States government.

P. “Franchise” means the initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers.

Q. “Franchisee” means the person, firm or corporation to whom or which a franchise, as herein above defined, is granted by the council pursuant to this chapter, and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in this chapter and in a franchise granted in compliance with this chapter.

R. “Gross revenues” means any and all revenue derived directly or indirectly by franchisee, or by franchisee’s affiliates, as defined in the federal Cable Act, from the operation of the franchisee’s cable system to provide cable services in the franchise area. Gross revenues include, by way of illustration and not limitation, monthly and other fees charged subscribers for cable services including basic service, expanded basic service, any expanded tiers of cable service, other tiers of cable service, optional premium service, video on demand, pay-per-view, per-program channels, cable service installation, disconnection, reconnection and change-in-service fees, leased access channel fees, remote control rental fees, late fees and administrative fees, consideration received by the franchisee from programmers for carriage of cable services on the cable system and recognized as revenue under generally accepted accounting principles (GAAP), revenues from rentals of converters or other cable system equipment, advertising sales revenues (including local and a pro rata share of regional and national advertising carried on the cable system in the franchise area), net of commissions due to franchisee’s unaffiliated advertising agencies that arrange for the advertising buy, revenues from program guides, additional outlet fees, revenue from the sale or carriage of other cable services, revenues from home shopping, and a fairly apportioned percentage of fees associated with bundled services (i.e., late fees, NSF fees, etc.). Gross revenues shall not include (1) bad debt; provided, however, that all or part of any such bad debt that is written off but subsequently collected shall be included in gross revenues in the period collected; or (2) any taxes on services furnished by the franchisee that are imposed directly on any subscriber or user by the state, grantor or other governmental unit and that are collected by the franchisee on behalf of said governmental unit; or (3) the PEG fee as required by this franchise. The franchise fees are not a tax and are therefore included in gross revenues.

This definition shall be construed so as to include all gross revenues to the maximum extent permitted by federal and state law, except to the extent specifically excluded in this section, and encompasses revenues that may develop in the future, whether or not anticipated. If a statutory change in state or federal law or a decision of the FCC or a court of competent jurisdiction expands or contracts the categories of revenue available to the city for the franchise fee assessment beyond those permitted under this definition as of the effective date, this franchise may be amended to include or exclude any such category of revenue in the definition of gross revenues under this franchise; provided, that the city amends the franchises of all other similarly situated multichannel video provider over which the city has jurisdiction and authority to impose such fees.

S. “Headend” means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

T. “High definition television (HDTV)” means a television system that will provide sharper picture definition than the current U.S. Standards, 525 lines per frame.

U. “Insertion point(s)” means location(s) where institutional programming can be initiated for distribution throughout the secured portion of the subscriber network.

V. “Installation” means the connection of the system from feeder cable to subscribers’ terminals.

W. “Institutional services” means a cable communications system designated principally for the provision of nonentertainment services to schools, public agencies or other nonprofit agencies which is separate and distinct from the subscriber network or is on secured channels of the subscriber network.

X. “Interactive services” means services provided to subscribers where the subscriber either (1) receives information consisting of television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (2) transmits signals to any other location for any purpose.

Y. “NCTA” means the National Cable Television Association.

Z. “Office” means the person or entity designated by the city of Auburn as being responsible for the administration of a franchise for the city.

AA. “Operator” means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of chapter.

BB. “Premium services” means programming over and above those provided by basic services for which there is an additional charge.

CC. “Property of franchisee” means all property owned, installed or used by a franchisee in the conduct of its business in the city under the authority of a franchise granted pursuant to this chapter.

DD. “Proposal” means (1) the response by an individual or organization to a request by the city regarding the provision of cable services; or (2) an unsolicited plan submitted by an individual or organization seeking to provide cable services in the city.

EE. “Public way” means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, drive, circle or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the city in the service area which shall entitle the city and a franchisee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system. “Public way” shall also mean any easement now or hereafter held by the city within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the city and a franchisee to the use thereof for the purpose of installing or transmitting franchisee’s cable service or other service over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appurtenances, attachments and other property as may be ordinarily necessary and pertinent to the cable system.

FF. “Subscriber” means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee’s express permission. (Ord. 6284 § 1, 2010; Ord. 4625 § 2, 1993.)

13.36.030 Franchise – Conditions and term.

A. Authority to Grant Franchises or Licenses for Cable Television. The council may by resolution award a nonexclusive franchise to construct, operate and maintain a cable communications system which complies with the requirements and conditions of this chapter. Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the city from granting other or further franchises or permits, or preclude the city from using any roads, rights-of-way, streets, or other public properties, or affect its jurisdiction over them or any part of them, or limit the full power of the city to make such changes as the city shall deem necessary, including the dedication, establishment, maintenance, and improvement of all new rights-of-way and thoroughfares and other public properties; provided, that any such changes shall not materially or substantially impair the rights granted a franchisee pursuant to this chapter. All franchises granted subsequent to the effective date of this chapter shall be consistent with the requirements and conditions of this chapter.

B. Incorporation by Reference. The provisions of this chapter shall be incorporated by reference in any franchises approved pursuant hereto. The provisions of any proposal for a franchise submitted and accepted by the city shall be incorporated by reference in the applicable franchise; provided, that in the event of any conflict between the proposal, this chapter and the franchise, the franchise shall be the prevailing document.

C. Conditions of a Franchise. Subject to the provisions in this chapter, any franchise granted hereunder by the city shall authorize a franchisee to: (1) engage in the business of operating and providing cable service and the distribution and sale of such service to subscribers within the city; and (2) erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures, and other property as may be necessary and appurtenant to the cable communications system; and (3) use, operate and provide similar facilities, or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other franchisee franchised or permitted to do business in the city; provided, that no privilege or exemption shall be granted or conferred upon a franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein.

D. Term of Franchise. The council shall have the right to grant a franchise for a period of time which in the council’s judgement is the most appropriate to the circumstances of the particular grant and is in the best interests of the citizens of the city. (Ord. 4625 § 2, 1993.)

13.36.040 Franchise – Application requirements.

An applicant for an initial franchise to construct, operate, and maintain a cable communications system within the city shall file an application in a form prescribed by the city, accompanied by a nonrefundable filing fee in the amount to be determined by the city. (Ord. 4625 § 2, 1993.)

13.36.050 Public hearing and notice requirements.

A. Prior to the granting of a franchise, the city council shall conduct a public hearing to determine the following:

1. That the public will be benefited by the granting of a franchise to the applicant;

2. That the applicant has requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area;

3. That the applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the city;

4. That the applicant will comply with all terms and conditions placed upon a franchisee by this chapter;

5. That the applicant is capable of complying with all relevant federal, state, and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise;

6. The capacity of public rights-of-way to accommodate the cable system;

7. The present and future use of the public rights-of-way to be used by the cable system; and

8. The potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public.

B. Notice of the public hearing shall comply with the following:

1. Briefly describe the purpose of hearing and state the place where the relevant information is available to the public, the time and place of the hearing and the date by which written comments must be submitted.

2. Published at least once during the two-week period preceding the hearing in a newspaper of general circulation within the city, and in one or as many more community newspapers as may be necessary to cover the entire cable franchise area, and be broadcast over the local access channel of the grantee in the cable franchise area affected at least once each day between the hours of 9:00 a.m. and 11:00 p.m. during the two weeks immediately preceding the hearing. (Ord. 4625 § 2, 1993.)

13.36.060 Acceptance.

A. No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the resolution granting same has become effective and the grantee has accepted same as provided below.

B. Within 60 days after the effective date of the resolution awarding a franchise, or within such extended period of time as the council in its discretion may authorize, a franchisee shall file with the city clerk its written acceptance of the franchise, in a form satisfactory to the city attorney, together with the bond and insurance policies required by ACC 13.36.370 and 13.36.380. (Ord. 4625 § 2, 1993.)

13.36.070 Police powers.

In accepting any franchise, a franchisee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the city to adopt and enforce general laws necessary to protect the safety and welfare of the public. The franchisee also agrees to comply with all applicable general laws enacted by the city pursuant to such power so long as such regulations do not materially increase the burden or impair the rights of the franchise as provided for in this chapter. (Ord. 4625 § 2, 1993.)

13.36.080 Rules and regulations by the city.

In addition to the inherent powers of the city to regulate and control any franchise it issues, the authority granted to the city by the Act, and those powers expressly reserved by the city or agreed to and provided for in a franchise, the city also reserves the right and power to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers. (Ord. 4625 § 2, 1993.)

13.36.090 Technical standards and maintenance.

A. Subject to federal, state and local law, a franchisee shall comply with FCC Rules, Part 76, Subpart K, Section 76.601 through 76.610 and as amended hereafter, and, at the minimum, the following:

1. Applicable city, county, state and national/federal codes, laws and regulations;

2. Applicable utility joint attachment practices;

3. The National Electric Safety Code; ANSI C2;

4. Local utility code requirements;

5. Local rights-of-way procedures, in accordance with ACC Titles 12, 13 and 20.

B. A comprehensive routine preventive maintenance program shall be developed, effected and maintained to ensure continued top quality cable communications operating standards in conformance with FCC Regulations Part 76 and amendments thereto. (Ord. 6238 § 3, 2009; Ord. 4625 § 2, 1993.)

13.36.100 Parental control devices.

A franchisee will make available at its cost, including applicable handling fees, a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber. (Ord. 4625 § 2, 1993.)

13.36.110 Construction standards.

All facilities constructed pursuant to the provisions of this chapter shall be placed and maintained at such places and positions in or upon such streets, avenues, alleys and public places as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable sections of the National Electrical Code, codes of the state of Washington and ACC Titles 12, 13 and 20 pertaining to such construction. (Ord. 6238 § 4, 2009; Ord. 4625 § 2, 1993.)

13.36.120 Construction notification.

Upon application for each construction permit in compliance with this chapter, a franchisee shall submit to city its plan for advance notification for the proposed construction project. In the event that an emergency situation arises which precludes such advance notification, a franchisee shall subsequently inform the city of the nature of the extraordinary event and the action taken. (Ord. 4625 § 2, 1993.)

13.36.130 Undergrounding and landscaping.

Undergrounding of all utility facilities will meet the requirements of Chapter 13.32A ACC. (Ord. 6238 § 5, 2009; Ord. 4625 § 2, 1993.)

13.36.140 Construction in right-of-way.

Whenever, in the sole opinion of the city, any of a franchisee’s facilities or equipment need to be relocated or altered due to a construction or repair project by the city in a public way, a franchisee shall move or relocate said facilities or equipment within 30 days from receiving written notice from the city. However, in the event such relocation is required due to emergency repairs deemed necessary by the city, such relocation or moving shall be accomplished within 24 hours. Any relocation or alteration of a franchisee’s facilities or equipment required under this section shall be at the sole expense of a franchisee. Installation and/or relocation of all underground and aerial facilities within existing city right-of-way or public ways or city utility easements shall be permitted under Chapter 12.24 ACC, Construction Permits. (Ord. 5043 § 1 (Exh. B), 1998; Ord. 4625 § 2, 1993.)

13.36.150 Safety requirements.

A franchisee, in accordance with applicable national, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.

All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition and in good order and repair.

The city reserves the general right to see that the system of a franchisee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the city, the city will, after discussions with a franchisee, establish a reasonable time for a franchisee to make necessary repairs. If the repairs are not made within the established time frame, the city may make the repairs itself or have them made and collect all reasonable costs thereof from the franchisee. (Ord. 4625 § 2, 1993.)

13.36.160 Building moving.

Whenever any person shall have obtained permission from the city to use any street for the purpose of moving any building, a franchisee shall, upon seven days’ written notice from the city, raise or remove, at the expense of the permittee desiring to move the building, any of a franchisee’s wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with the codes and regulations of the city. Where more than one street is available for the moving of such building, the building shall be moved on such street as shall cause the least interference. In such event, the city shall be responsible for determining the path of least interference. It is further provided that the person or persons moving such building shall indemnify and save harmless said franchisee from any and all damages or claims of any kind or nature caused directly or indirectly for such temporary arrangement of the lines and poles of a franchisee. (Ord. 4625 § 2, 1993.)

13.36.170 Tree trimming.

Upon approval of the director of public works, a franchisee shall have the authority to trim trees upon and overhanging streets, public ways and public places in the franchise area so as to prevent the branches of such trees from coming into contact with a franchisee’s wires and cables, and, if necessary, to clear a microwave path. A franchisee shall be responsible for debris removal from such activities. Failure to remove debris after a reasonable time shall result in the debris being removed by the city and the costs involved charged to the franchisee. (Ord. 4625 § 2, 1993.)

13.36.180 Rates.

Within 60 days after the grant of any franchise hereunder, a franchisee shall file with the city a complete schedule of all rates to be charged to all subscribers.

Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, the franchisee shall provide the city and all subscribers a minimum of 30 days prior written notice of such change.

Subject to federal, state and local law, the city may regulate the approval of increases of rates or charges for providing cable service and prescribe reasonable rate approval procedures. (Ord. 4625 § 2, 1993.)

13.36.190 Discounts.

A franchisee shall offer a discount of 30 percent from the normal charge for basic services and installation to those individuals age 62 or older or disabled who are the legal owner or lessee/tenant of their residence provided that their combined disposable income from all sources does not exceed the Housing and Urban Development (HUD) standards for the Seattle-Everett area for the preceding calendar year.

The city or its designee shall be responsible for certifying to a franchisee that such applicants conform to the specified criteria. (Ord. 4625 § 2, 1993.)

13.36.200 Customer service.

A. A franchisee shall render repair service to restore the quality of the signal at approximately the same standards existing prior to the failure or damage of the component causing the failure and make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A log of all service interruptions shall be maintained for at least a period of one year. The city, after two working days’ notice, may inspect such logs.

B. An employee of a franchisee shall answer and respond to all individual complaints received no later than 5:00 p.m. weekdays. A franchisee may use an answering service to receive complaints after 5:00 p.m. weekdays, weekends and holidays and will respond to any system outage affecting more than five subscribers. A copy of the instructions to the answering service by a franchisee shall be furnished to the city or its designee.

C. A technician shall be on call seven days a week, 24 hours a day. A franchisee shall respond immediately to service complaints in an efficient manner.

D. A franchisee shall maintain a sufficient repair force to respond to individual requests for repair service within two working days after receipt of the complaint or request, except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven days, to the extent reasonable. If a subscriber has notified a franchisee of an outage, no charge for the period of the outage shall be made to the subscriber if the subscriber was without service for a period exceeding 24 hours, unless the outage was due to acts of God, force majeure or circumstances reasonably beyond a franchisee’s ability to control.

E. A franchisee shall supply at the time of a new connection, and periodically at least once a year, the title, address, and telephone number of the city official or his/her designee, to whom system subscribers may direct their concerns.

F. In no case will a franchisee’s service standards fall below the standards established by the National Cable Television Association (NCTA) which are attached to the ordinance codified in this chapter as Appendix “A” and incorporated within this chapter² or any FCC regulation. (Ord. 4625 § 2, 1993.)

13.36.210 Telephone response.

A. A franchisee shall maintain an adequate force of customer service representatives as well as incoming trunk lines so that telephone inquiries are met promptly and responsively. A franchisee shall have in place procedures for utilization of other manpower and/or recording devices for handling the flow of telephone calls at peak periods of large outages or other major causes of subscriber concern. A copy of such procedures and/or policies shall be made available to the city.

B. In order that the city may be informed of a franchisee’s success in achieving satisfactory customer relations in its telephone answering functions, a franchisee shall, upon request by the city, and routinely no less than quarterly, provide the city with a summary that will provide, at a minimum, the following:

1. Total number of calls received in reporting periods;

2. Time taken to answer;

3. Average talk time;

4. Number of calls abandoned by the caller;

5. Average hold time;

6. Percentage of time all lines busy;

7. An explanation of any abnormalities.

This data will be compared to minimum standards of the NCTA incorporated in this chapter by reference or any amendment thereto which increases such NCTA standards, and shall be monitored by the city.

C. Calls for service generated during period of system outages due to emergency which affects more than 25 customers may be excluded from the service response calculations. The city shall have the sole determination as to what constitutes a system failure due to emergency and which calls shall be excluded from the service level calculations. (Ord. 4625 § 2, 1993.)

13.36.220 Failure to improve customer service.

A. The city or its designee shall review telephone response and customer service information with a franchisee. The franchisee shall make improvements in the appropriate categories which were found deficient pursuant to ACC 13.36.190 and 13.36.200 from the last reporting period. Failure to do so may result in the calling of a public hearing by the council for the purpose of examining the reasons, if any, why such improvements were not achieved by a franchisee.

B. An unsatisfactory record will result in the hearings being made part of an exhibit under Sections 626(c)(1)(A) and (B) of the Act alleging that such practices have failed to conform with future refranchising requirements as stated therein. In addition, a franchisee’s corporate office shall be advised of the city’s findings. (Ord. 4625 § 2, 1993.)

13.36.230 Franchise fee.

A franchisee shall pay to the city quarterly, on or before the thirtieth day of each January, April, July and October, a sum equal to five percent or greater of gross revenues as defined herein for the preceding three months. Such remittances shall be accompanied by forms furnished by the city to report detailed information as to the sources of such income. (Ord. 4625 § 2, 1993.)

13.36.240 Cable system evaluation.

A. In addition to periodic meetings, the city may require reasonable evaluation sessions at any time during the term of a franchise. It is intended that such evaluations cover areas such as customer service, response to the community’s cable-related needs, and a franchisee’s performance under and compliance with the terms of a franchise.

B. During an evaluation session, a franchisee shall fully cooperate with the city and shall provide without cost such reasonable information and documents as the city may request to perform evaluations.

C. If the city has concerns because of uncorrected and reoccurring problems with the franchisee’s cable system, the city may retain an independent consultant to conduct an analysis of the cable system and its performance and submit a report of such analysis to the city. The city shall take into consideration any efforts taken to correct such deficiencies.

D. The report prepared by the consultant in response to the city’s request for a system evaluation shall include:

1. A description of the technical problem in cable system performance which precipitated the special tests;

2. What cable system components were tested;

3. The equipment used and procedures employed in testing;

4. The method, if any, by which specific performance problems may be resolved;

5. Any other information pertinent to said tests and analyses which may be required by the city, or determined when the test is performed.

E. If the tests indicate that the system is not in compliance with FCC standards or the requirements of the franchise, a franchisee shall reimburse the city for any costs involved in conducting such tests, such as consultant fees or other expenses. Such fees or expenses shall not exceed $2,500 for each evaluation. (Ord. 4625 § 2, 1993.)

13.36.250 Periodic meetings.

Upon request, a franchisee shall meet with designated city officials and/or designated representative(s) to review the performance of a franchisee for the preceding period. The subjects may include, but are not limited to, those items covered in the periodic reports and performance tests. (Ord. 4625 § 2, 1993.)

13.36.260 Record inspection.

Subject to statutory and constitutional limits and two working days’ advance notice, the city reserves the right to inspect the records of a franchisee necessary for the enforcement of a franchise and verification of the accuracy of franchise fee payments at any time during normal business hours; provided, that the city shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of a franchisee. Such documents shall include such information as financial records, subscriber records within the context of Section 631 of the Act, and plans pertaining to a franchisee’s operation in the city. (Ord. 4625 § 2, 1993.)

13.36.270 Reports.

A franchisee shall furnish, upon request, a report of its activities as appropriate. Such report shall include:

A. Most recent annual report;

B. A copy of the 10-K Report, if required by the Securities and Exchange Commission;

C. The number of homes passed;

D. The number of subscribers with basic services;

E. The number of subscribers with premium services;

F. The number of hook-ups in period;

G. The number of disconnects in period;

H. Total number of miles of cable in city;

I. Summary of complaints received by category, length of time taken to resolve and action taken to provide resolution;

J. A statement of its current billing practices, and a sample copy of the bill format;

K. A current copy of its subscriber service contract;

L. Report on operations; and

M. Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate. (Ord. 4625 § 2, 1993.)

13.36.280 Programming.

For informational purposes, a franchisee shall file a listing of its programing and the tiers in which they are placed. A franchisee shall consider the city’s suggestions of general program categories as determined from time to time in residential questionnaire polls. The results of initial such surveys will be appended to the respective franchise agreements. (Ord. 4625 § 2, 1993.)

13.36.290 Nondiscrimination.

A. A franchisee shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage; provided, that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled; and, provided further, that connection and/or service charges may be waived or modified during promotional campaigns of a franchisee.

B. A franchisee will not deny access to cable communications service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides. (Ord. 4625 § 2, 1993.)

13.36.300 Continuity of service.

It shall be the right of all subscribers to continue receiving service so long as their financial and other obligations to a franchisee are fulfilled.

A. In this regard a franchisee shall act so far as it is within its control to ensure that all subscribers receive continuous uninterrupted service during the term of the franchise.

B. In the event a franchisee fails to operate a system for 72 continuous and consecutive hours without prior notification to and approval of the city council or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond a franchisee’s control, the city may, after notice and an opportunity for a franchisee to commence operations at its option, operate the system or designate someone to operate the system until such time as a franchisee restores service to conditions acceptable to the city council or a replacement franchisee is selected. If the city is required to fulfill this obligation for a franchisee, a franchisee shall reimburse the city for all reasonable costs or damages in excess of revenues from the system received by the city that are the result of a franchisee’s failure to perform. (Ord. 4625 § 2, 1993.)

13.36.310 Franchise renewal.

The provisions of Section 626 of the Act, or other applicable federal or state law, will govern the actions of the city and a franchisee in proceedings relating to franchise renewal. The city expressly reserves the right to establish guidelines and monitoring systems in accordance with the provisions of the Act to measure the effectiveness of a franchisee’s performance during the term of such franchise. (Ord. 4625 § 2, 1993.)

13.36.320 Transfer of ownership.

A. A franchisee’s right, title, or interest in the franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an affiliate, without the prior consent of the city, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by other hypothecation, or by assignment of any rights, title, or interest of the franchisee in the franchise or cable system in order to secure indebtedness. Approval shall not be required for mortgaging purposes provided that the collateral does not specifically affect the assets of this franchise, or if the transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee.

B. In any transfer of a franchise requiring city approval, the applicant must show technical ability, financial capability, legal and general qualifications as determined by the city, and must agree to comply with all provisions of the franchise. All costs associated with the transfer process shall be reimbursed to the city.

C. An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised.

D. Regardless of the circumstances, a franchisee shall promptly notify the city prior to any proposed change, transfer, or acquisition by any other party of a franchisee’s company. In the event that the city adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the franchise. (Ord. 4625 § 2, 1993.)

13.36.330 Removal and abandonment – Franchisee property.

A. The city may direct a franchisee to temporarily disconnect or bypass any equipment of a franchisee in order to complete street construction or modification, install and remove underground utilities, or for other reasons of public safety and efficient operation of the city. Such removal, relocation or other requirement shall be at the sole expense of a franchisee.

B. In the event that the use of any part of the cable system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of the franchise or other city ordinances or the franchise has been terminated, cancelled or has expired, a franchisee shall promptly, upon being given 10 days’ notice, remove within 90 days from the streets or public places all such property and poles of such system other than any which the city may permit to be abandoned in place. In the event of such removal, a franchisee shall promptly restore the street or other areas in accordance with local regulations and standards from which such property has been removed to a condition similar to that existing before such removal and satisfactory to the city. Such approval shall not be unduly withheld.

C. Any property of a franchisee remaining in place 90 days after the termination or expiration of the franchise shall be considered permanently abandoned. The city may extend such time not to exceed an additional 90 days.

D. Any property of a franchisee to be abandoned in place shall be abandoned in such manner as the city shall prescribe. Upon permanent abandonment of the property of a franchisee in place, the property shall become that of the city, and a franchisee shall submit to the city clerk an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. None of the foregoing affects or limits franchisee’s rights to compensation for an involuntary abandonment of its property under state or federal law. In the event the city and a franchisee are unable to agree as to whether an abandonment is voluntary for the purposes of this section, either party may invoke arbitration to resolve such question. (Ord. 4625 § 2, 1993.)

13.36.340 Termination – Revocation for cause.

A. If a franchisee willfully violates or fails to comply with any of the material provisions of a franchise, the city shall give written notice to a franchisee of the alleged noncompliance of its franchise. A franchisee shall have 45 days from the date of notice of noncompliance to cure such alleged default or, if such default cannot be cured within 45 days, to present to the city a plan of action whereby such default can be promptly cured.

B. If such default continues beyond the applicable dates agreed to for such cure, the city shall give a franchisee written notice that all rights conferred under this chapter and pursuant to its franchise may be revoked or terminated by the council after a public hearing. A franchisee shall be entitled to not less than 30 days’ prior notice of the date, time and place of the public hearing. The city may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling a franchisee to comply with the provisions of the franchise and recover damages and costs incurred by the city by reason of a franchisee’s failure to comply. (Ord. 4625 § 2, 1993.)

13.36.350 Effect of termination for noncompliance.

Subject to state and federal law, if any franchise is terminated by the city by reason of a franchisee’s noncompliance, that part of the system under such franchise located in the streets and public property, shall, at the election of the city, become the property of the city at a cost consistent with the provisions of Section 627(b)(1) of the Act. If the city, or a third party, does not purchase the system, a franchisee shall, upon order of the city council, remove the system as required under ACC 13.36.330. (Ord. 4625 § 2, 1993.)

13.36.360 Indemnity and hold harmless.

A franchisee will indemnify and hold harmless the city from any and all liabilities, fees, costs and damages, except in the case of judicially determined gross negligence and/or willful misconduct of the city, whether to person or property, or expense of any type or nature which may occur to the city by reason of the construction, operation, maintenance, repair and alteration of a franchisee’s facilities or any other actions of a franchisee in the city. In any case in which suit or action is instituted against the city by reason of damage or injury caused by a franchisee, the city shall cause written notice thereof to be given to a franchisee and a franchisee thereupon shall have the duty to appear and defend any such suit or action, without cost or expense to the city. (Ord. 4625 § 2, 1993.)

13.36.370 Insurance.

A. A franchisee shall, concurrently with the filing of an acceptance of award of any franchise granted hereunder, furnish to the city and file with the city clerk, and at all times during the existence of any franchise granted hereunder maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, for the purpose of protecting the city and all persons against liability for loss or damage, for personal injury, death and property damage, and errors or omissions, occasioned by the operations of a franchisee under such franchise, such policy to provide minimum limits of $1,000,000 for both personal injury and/or property damage.

B. The policies mentioned in the foregoing paragraph shall name the city as additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the city 30 days in advance of the effective date thereof. If such insurance is provided by a policy which also covers a franchisee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. (Ord. 4625 § 2, 1993.)

13.36.380 Performance bond.

A franchisee shall promptly repair or cause to be repaired any damage to city property caused by a franchisee or any agent of a franchisee. A franchisee shall comply with all present and future ordinances and regulations regarding excavation or construction and, if deemed necessary by the city, shall be required to post a performance bond or other surety acceptable to the city in an amount specified by the city in favor of the city warranting that all restoration work will be done promptly and in a workmanlike manner and that penalties, if any, after final adjudication are paid to the city within 90 days of such finding. (Ord. 4625 § 2, 1993.)

13.36.390 Franchising costs.

A franchisee shall pay to the city upon acceptance of any franchise granted hereunder the city’s out-of-pocket costs associated with the franchising process. The city shall provide the franchisee an itemization of its anticipated costs. Such payment is in addition to franchise fee payments. Payment is due within 30 days of receipt of appropriate invoice from the city. (Ord. 4625 § 2, 1993.)

13.36.400 Equalization of civic contributions.

A. In the event of one or more franchises being granted pursuant to the provisions of this chapter, the city may require that such subsequential franchisees pay to the city an amount proportionally equal to franchising costs contributed by the initial franchisee. These costs may include, but are not limited to, such features as access and institutional network costs, bi-directional or equivalent cable installed to municipal buildings and similar expenses.

B. On the anniversary of the grant of each later awarded franchise, such franchisees shall pay to the city an amount proportional to the amount contributed by the original franchisee, based upon the amount of subscribers held by such franchisees.

C. Additional franchisees shall provide all PEG access channel(s) and the emergency override system currently available to the subscribers of existing franchisees. In order to provide these access channels, additional franchisees may interconnect, at their cost, with existing franchisees, subject to any reasonable terms and conditions that the existing franchisee providing the interconnection may require. These interconnection agreements shall be made directly between the franchisees. The city council, in such cases of dispute of award, may be called upon to arbitrate regarding these arrangements. (Ord. 4625 § 2, 1993.)

13.36.410 Inconsistency.

If any portion of chapter should be inconsistent or conflict with any rule or regulation now or hereafter adopted by the FCC or other federal law, then to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other federal law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect; provided the remaining provisions of this chapter shall not be affected thereby. (Ord. 4625 § 2, 1993.)

13.36.420 Severability.

Each section, subsection or other portion of chapter shall be severable and the invalidity of any section, subsection, or other portion shall not invalidate the remainder. (Ord. 4625 § 2, 1993.)

For statutory provisions authorizing third-class cities to manage and control the city streets, see RCW 35.24.290(3); for provisions authorizing code cities to regulate and grant nonexclusive franchises for facilities for the transmission of signals and other methods of communication, see RCW 35A.47.040.

Code reviser’s note: Appendix “A” is on file in the office of the city clerk.